Q: Is it legal to use AI to flag illegal content and store it for review on a US-based free-speech platform?
I own a free-speech, privacy-first platform where users can upload various files, including images. The website uses Artificial Intelligence to detect and flag potentially illegal content, such as CSAM, to prevent uploads or flag for manual review. The flagged content is stored for 24 hours for the review process. I'm wondering if storing the flagged content for this period and using AI for this purpose is legal, considering it's hosted in the United States and we have no collaboration with law enforcement. What should change to mitigate liability?
A: Great question! Flagging the content for 24 hours for review is not going to trigger liability for you, because at that point the legal status of the content is still pending verification, and you haven't obtained actual notice of anything illegal. But once you do verify it and find that it is or may be illegal, that triggers your responsibility under 18 U.S.C. § 2258A, to report it to the National Center for Missing & Exploited Children (NCMEC). The law does not require that a platform be in active collaboration with law enforcement but mandates reporting if CSAM is detected.. At that point, you are still required to maintain the content in an offline archive for 12 months in case it is requested by law enforcement, and following that, you are required to delete it. I am a lawyer who specializes in online trust and safety, and have designed compliant processes for other companies dealing with similar issues, so please feel free to be in touch if I can assist further.
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